Aboriginal Title, Indigenous Proprietary Title, and Nde' Inherent Right to Self-Governance

A Underlying Issue Still Contested from Indigenous Perspectives: Neither the U.S. nor Texas Had Rights to Extinguish Aboriginal Title of Southern Lipan Apaches of South Texas & LRGV

While many indigenous peoples have contested the final decisions of the infamous Indian Claims Commission, few if any have ever set forth an analysis ourselves of the decisions, nor critiqued how these decisions effected the ongoing self-determination, survival and existence of Nde', or Southern Lipan Apaches in South Texas and in the Lower Rio Grande Valley.

Why? How and why did other indigenous peoples ('Mescaleros', et. al) ever become recognized as the sole proprietary owners of the traditional territories of Nde' of what is today South Texas, Lower Rio Grande Valley & River, and our territories in Mexico?

This is a grave harm, still to be resolved for Nde' self-determination. It is clear that our peoples, under great threat of genocidal destruction before and during the time of the Indian Claims Commission, were a vulnerable indigenous people without means to counter-act or to defend against this level of deceit and injustice.

Today, it is time to convene, and to re-assess the outcomes of the ICC, several decades later, and the work that will be entailed in launching an Aboriginal Title landmark case to prove Nde' Aboriginal Title and traditional territorial rights to Konitsaii Gokiyaa, Lipan country.

For now, here is something to absorb...

I believe it is time for a critical gathering of leadership to deconstruct the assumptions built withing the conclusions of the Indian Claims Commission, and the United States and Texas as beneficiaries, which effectively left unrecognized and peripheral all Nde' families, communities, and organizations.

Here is an excerpt of the final decision, and the full document is here: http://digital.library.okstate.edu/icc/v36/iccv36p023.pdf

Excerpt, 36 Ind. Cl. Comm. 7, Docket #22-C

"The Commission found the detailed reports submitted by the above experts to be informative. However, the Commission has rejected as conjectural, speculative, and not supported by the preponderance of the evidence t h e conclusions of p l a i n t i f f s ' expert witnesses as to the extent of Lipan and Mescalero aboriginal ownership of the lands claimed herein for the time periods in question. The Commission also r e j e c t s the p l a i n t i f f ' s

experts' conclusions as of the date of taking.

The defendant's expert witness was D r . Kenneth F. Neighbours, a

historian who has written extensively about the history of Texas and about i(afg Robert Neighbors, the famous Indian agent of the Texas tribehwho served in that capacity under both the Republic of Texas and the United States governments. His report, an ethnohistory of the Lipan and Mescalero Indians, and his testimony related chiefly to the land and Indian policies of the respective sovereignties that ruled Texas through the 19th century. Be

36 Ind. C l . C m . 7 65 concluded t h a t , as a r e s u l t of such p o l i c i e s , the Indians of Texas, and p a r t i c u l a r l y the Lipan and Mescalero Indians, did not have aboriginal t i t l e to any lands within the State of Texas, although a t various times these and other Indian t r i b e s had h i s t o r i c a l l y been located a t d i f f e r e n t places within t h e area. The Commission has rejected Dr. ~ e i g h b o u r s ' legal conclusions r e l a t i v e t o Indian t i t l e in the State of Texas as contrary to the law of the case.

16. Conclusion.

Based upon the foregoing findings of f a c t and a l l the evidence of

record, the Commission has concluded as follows:

(a) From time immemorial, through the periods of Spanish and Mexican sovereignty, and the Republic of Texas, and, u n t i l November 1, 1856, when, as a r e s u l t of the actions of the United States army in carrying out federal policy, it was compelled to vacate its ancestral home, the aboriginal Lipan Apache Tribe held Indian t i t l e to the following described land situated within that area i n Texas claimed by principal p l a i n t i f f herein :

Beginning a t that point on the Rio Grande River which is the

northwest corner of Zapata County; thence e a s t e r l y along the

common boundary of Zapata and Webb counties to t h e southeast corner of Webb County; thence northeasterly on a l i n e , crossing the Nueces River, to the town of Pawnee i n Bee County; thence

northwesterly on a l i n e to the northwest corner of Bandwa County; thence northwesterly on a l i n e to the northwest corner of Edwards County; thence south along the western boundary of Edwards County and adjoining Kinney County to the southwest corner of Kinney County on the Rio Grande River; thence southeasterly along the east bank of the Rio Grande River to the place of beginning.

(b) From time immemorial, through the periods of Spanish and Mexican and occupied exclusively i n Indian fashion a l a r g e a r e a i n eouth c e n t r a l 36 Ind. C1. Comm. 7 New Mexico and west Texas between the Rio Grande River and the Pecos

River. By v i r t u e of the Executive Order of May 29, 1873, e s t a b l i s h i n g the Mescalero Apache Indian Reservation i n New Mexico, the Mescalero Apache Tribe relinquished to the United S t a t e s without the payment of compensation, Indian t i t l e t o a l l lands outside of the reservation. See Mescalero Apache Tribe v. United S t a t e s , 17 Ind. C1. Comm. 100 (1966).

Accordingly, May 29, 1873, is the e f f e c t i v e date of the extinguishment of a l l Mescalero aboriginal land claims including Mescalero Indian t i t l e t o the following described area in Texas.

Beginning a t t h e southeast corner of the S t a t e of New

Mexico; thence south-southwest on a l i n e across the Pecos

River t o the southeast corner of Reeves County Texas; thence

southwest on a l i n e to Ft. Davis i n J e f f Davis County; thence

northwest on a l i n e to the town of Van Horn in Culberson County; thence northwest on a l i n e to the northeast corner El Paso County, Texas, said corner being on the southern boundary of the S t a t e of New Mexico; thence e a s t e r l y along the southern boundary of the S t a t e of New Mexico to t h e p o i n t of beginning.

(c) The evidence of record does not support Lipan and Mescalero

aboriginal t i t l e claims to lands outside of the areas awarded above.

(d) The Tonkawa Tribe of Indians, second intervenors, herein has

f a i l e d t o prove by the preponderance of the evidence t h a t s a i d t r i b e is the successor in i n t e r e s t t o the a b o r i g i n a l Lipan Apache Tribe.""

Here is another view:

from, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights, by Paul G. McHugh, (Oxford University Press, 2011), 178-179.

"In Calder, Justice Hall drew upon the American cases on extinguishment when he indicated that aboriginal title 'could not therefore be extinguished except by surrender to the Crown or by competent legislative authority, and then only be specific legislation.' His inspiration was the opinion of Davis J in Lipan Apache (1967) where it was said that in 'the absence of a "clear and plain intention" in the public records that the sovereign "intended to extinguishe all of the claimants' rights" to their property' the Indian title continued at law. That approach towards the interpretation of statutes affecting Indian title had been used in a sequence of cases from at least the early twentieth century. Ultimately, it went back to a canon for the interpretation of Indian treaties given by Chief Justice Marshall who said (1832) that treaties to 'be construed, not according to the technical meaning of their words, but in the sense in which they would naturally be understood by Indians'. As the doctrine of aboriginal title became articulated in the courts, judges routinely invoked this 'clear and plain intention' rule for the interpretation of statutes."

(to be continued)

COMMENTARY: UNITED NATIONS PERMANENT FORUM ON INDIGENOUS ISSUES (UNPFII), 2010

From April 19 through April 30, 2010, the United Nations Permanent Forum on Indigenous Issues will be in session.

Statements (interventions) submitted to the Permanent Forum are available here. And, this service is provided by doCip (Indigenous Peoples' Center for Documentation, Research and Information.)

Access to the UNPFII is quite difficult for the common Indigenous peoples--from regional and national meetings (where agendas are established and set)to transnational meetings (where hemispheric understandings are shaped) to the annual UNPFII session (where Indigenous delegates shape the 'voice' of Indigenous communities.

The politics of access continue to incise and sculpt the disparities and unbalance reflected in Indigenous self-determination movements, and at times gloss over how much at odds community-level analysis differs from elites' articulations of 'crisis.' While 'self-determination' and 'sovereignty' continue to be defined through normative Western political-science frameworks within U.N. realms, the lack of will by Indigenous delegates to challenge 'sovereignty' as an artifact of Western thought and to determine frameworks that disrupt normative sovereignty is nowhere to be seen in this year's opening statements.

Indigenous communities defending themselves against intensified violence and the use of violence by states, nations and nations-within-nations (the Indigenous polity) is hyperperipheralized, again.

The use of normative sovereignty to evade the ways in which 'sovereignty' is used daily as an umbrella to glaze over the ways in which--locally, regionally, nationally, and globally--Indigenous polities are not innocent of their enmeshments with the state, and not innocent of the use of this legal platform to exert violence against their own--is marginalized. And, this is crucial because most indigenous peoples experience violence intimately, in their closest environs--where the Indigenous polity of the household, community center, council, is entangled with the violence of the state.

Indigenous communities challenging deep militarization--at the bordered peripheries of the 'core', are increasingly pushing back on the tightening of the fist around the throat of their communities by oligarchical polities and challenging this across entire regions (comprised of both non-Indigenous and Indigenous leadership). The communiites experiencing physical, economic, and penetrating psychological violence as a result of violent dispossessions, displacements, and persecutions through the apparatus of the state working with and through the nation-within-the-nation sort of violence absolutely threaten the ideation that Indigenous sovereignty is utopic and unscathed. The voices from below are indicators that 'Indigenous sovereignty' and its discontents--must be allowed open debate, and put up for scrutiny if true self-determination and autonomy will ever gain traction among the common people--who are at best skeptical of the UNPFII larger impact on the Indigenous peoples from below.

Lipan Apache Women Defense/Strength--Gain 8 Signatories to Monday's Statement

Final Approved Statement by Lipan Apache Women Defense/Strength to the UN Special Rapporteurs:

Joint Statement to United Nations Permanent Forum on Indigenous Issues: Seventh Session APRIL 21 – MAY 2, 2008, United Nations Headquarters, New York

Intervention under Agenda Item 5-Human Rights: Dialogue with the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples and other special rapporteurs

By: Lipan Apache Women Defense

Supported By: Alianza Indigena Sin Fronteras, Western Shoshone Defense Project, Tonatierra, Indigenous Enviromental Network, Winnemem Wintu Tribe, Centro De Cultura Pueblo Nacion Mapuche Pelon Xaru, Native Women’s Association of Canada, International Geographical Union-Indigenous Peoples Knowledge and Rights Commission

Good morning Madame Chairperson, Permanent Forum members and delegates. My name is Michael Paul Hill, I am Chiricahua Apache and I am here on behalf of the Apache land defenders from El Calaboz ranchería, El Polvo village (Redford) and the San Carlos Apache Communities. We as Indigenous border communities with traditional territories along the now US/MEX border corridor, along with our non-indigenous neighbors in the southwestern border region of United States and northern Mexico, stand against the political and physical walls, barricades, and fencing that the United States is constructing at this very moment.


We urge the UNPFII to bring special focus and critical attention to the colonization, militarization and industrialization of the T’nde’, Nde’, Nnee’, Dine’ traditional lands and peoples. We ask the Forum to support the peaceful but firm resistance efforts of the Lipan Apache Women land and culture defense, and the Southern Athapaskan Alliance against the increasing militarized occupations and assaults by the United States and Mexico on our lands, culture, livelihoods, ceremonies and traditional sustenance. Of the 2000 mile long militarized conflict zone, over 1400 miles of the U.S.-Mexico border is the traditional territory of the Apache people. The Apache people must be given the opportunity to participate in the environmental, economic, social, and political decision-making in the region.


There are currently over 18,000 U.S. soldiers occupying our border communities with a buildup of up to 75,000 by 2010, and an estimated 8-10,000 Mexican soldiers currently deployed in the border towns and villages positioned for crackdowns on civil society indigenous protests against the construction of a Berlin-style wall which is dissecting Yaqui, O’odham, Opata, Mayo, Cocopah communities along the border. Indigenous women are particularly targeted by violence that militarization culture imposes on the U.S.-Mexico conflict region evidenced by the 4000+ disappeared and murdered women of Juarez and other border towns.


In response to this year’s theme of climate, bio-cultural diversity and livelihoods we bring the Forum’s attention to the adverse affects of the 18 ft high cement and steel border wall on the spiritual welfare of the Apache and other Indigenous peoples along the US/MEX border corridor. This physical barrier is disrupting animal migration routes and deterring the growth of native vegetation and herbal medicinal plants used in traditional ceremonies. The border wall will impede the safe travel on foot, car, and other modes, of Apache people back and forth across the militarized zone. Militarization of the border has resulted in the industrialized destruction of habitats, environments, livelihoods, bio-diversity, water sources, traditional agricultural practices, traditional food security, and traditional peace practices. To allow construction of the border wall, the U.S. recently “waived” over 35 laws to build the wall which provided some measure of protection to indigenous people’s rights to their environment, culture, and way of life.


We respectfully request that the UNPFII consider our recommendations to take an intersectional approach to climate change that involves consideration of militarization, industrialization, gender, and environmental degradation in the U.S.-Mexico militarized zone of occupation and conflict.

Ahi'i'e Ussn, ahi'i'e diyini, ahi'i'e shimaa £ebaiyé T’nde-Nnee’, ahi'i'e shitaa Sumá Ndé-Nneé.

Eloisa García Tamez Grandmother, El Calaboz,

Margo Tamez Co-founder Lipan Apache Women—Defense/Strength